Tuesday
Nov112014

Do I need a waiver to enter the United States?

QUESTION: I have never been to the United States but am concerned that I might require a waiver to enter the U.S.  When I was 18, I was charged and convicted of Uttering Threats (indictable) to destroy real property of the RCMP.  I was sentenced to 2 years probation.  It was a case of not thinking before I spoke.  It is the only conviction that I have ever had, and have not been in trouble since.  I am 40 years old now.  I really want to travel to the U.S. to visit some friends, but I am truly afraid to cross the border.  I have heard stories about people getting in a lot of trouble.  Do I need a U.S. entry waiver?  Any help with this would be greatly appreciated.

REPLY: Thank you for your message.  I am sorry to hear that you are afraid to cross the border.  While I cannot provide you with case-specific information without first reviewing your case in detail, I can provide you with some general information that might be useful. 

Under the Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i), any foreign national convicted of a crime involving moral turpitude is inadmissible to the U.S. and will require a waiver to enter.  The term “moral turpitude” generally refers to conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and duties owed between persons, or the duties owed to society in general.  A crime of moral turpitude (“CIMT”) has been defined as an illegal act that is, in itself, morally reprehensible and intrinsically wrong as opposed to an act that is wrong simply because it is prohibited by law.

The test to determine whether a particular crime involves moral turpitude is

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Friday
Sep262014

Sixth Circuit Rejects BIA's Interpretation of INA 212(h)

The U.S. Court of Appeals for the Sixth Circuit issued a precedent decision that will allow a greater number of lawful permanent residents (LPRs) to avoid deportation if they can demonstrate to an immigration judge that their removal will result in extreme hardship to close family members in the United States.

With this decision, the Sixth Circuit joins the Third, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits in holding that the bar to a waiver under § 212(h) of the Immigration and Nationality Act (INA) applies only to those persons with an aggravated felony conviction who became LPRs at the time that they lawfully entered the United States. The Court found that Congress specifically intended to preserve the waiver for those who adjusted to LPR status following their entry into the U.S. For many LPRs facing removal, the § 212(h) waiver is the only means to avoid separation from U.S. family members.  The waiver under INA § 212(h) is applied for on Form I-601

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Monday
Sep302013

Is there a culture of anti-Canadian, anti-immigrant attitudes among some U.S. Customs and Border Protection members?

Recent news articles discuss the attitude of U.S. Customs and Border Protection toward Canadian citizens at ports of entry:

Read article: "Nothing worse than a whiny Canadian..."

Read article: Watch: Lawsuit alleges U.S. guards discriminate against Canadians.

 

Friday
Sep132013

Unlawful Presence and Duration of Status (D/S)

QUESTION:  I am confused about my case. On 1 April 2003, I entered the US on an F1 visa. The border officer at the airport granted me admission for duration of status (D/S).  My college term started 1 May 2003. That was exactly 1 month after entering and enrolling into my college course. Due to my lack of interest in the study subject I discontinued going to classes a within month. That is, I attended classes for only a month.

Instead of departing from the US or changing the study subject, I decided to stay and took a job. After consulting an immigration lawyer I realized that the proper thing to do for me was to depart back to my country, which I did on the 19 August 2004. After I left the US for home (the Netherlands), I inquired myself of the consequences of my actions. I realized that I might have triggered the 3 or 10 year entry bar. I've never applied for a visa again, ever since, nor have I tried to enter the US/cross the border, since I have left. I know that if the 10 years bar applies to my case that would mean that by 19 August 2014, the entry bar should expire. But I am not sure of this since on the internet I have found information stating the difference between out-of-status and unlawful-presence and that D/S on an F1 student visa may have different meanings and consequences in comparison to other visa types.

Having granted D/S status on my F1 visa on 1 April 2003, but then having dropped out of school 1 to 2 months afterwards, followed by staying in the US until voluntarily departing back home on 9 August 2004, have I triggered any entry bar and if that's the case which of the two entry bar applies?


REPLY:  Thank you for your questions.  While I cannot provide you with advice specific to your case without first reviewing it in more detail, I have provided some general information below.

Individuals who are admitted to the U.S. as F1 students for the duration of status (“D/S”) do not begin to accumulate unlawful presence unless/until there is an official finding that the student has fallen out of status by either an Immigration Judge or U.S. Citizenship an Immigration Services (“USCIS”).  The act of dropping out of school alone does not begin the accumulation of unlawful presence. 

If an individual is subject to a formal finding that s/he has fallen out of F1 student status, the unlawful presence clock begins as of that finding.  If the individual departs the U.S. within six (6) months of the finding, s/he is not subject to a bar for unlawful presence.  If s/he departs the U.S. after six (6) months but before one (1) year after the finding, s/he is subject to the three (3)-year bar.  If s/he departs the U.S. more than one (1) year after the finding, the 10-year bar applies.

I hope this information is helpful. 

Tuesday
Jun182013

Do I have a 5-year bar to the U.S.?

QUESTION: Six months ago, I was asked to withdraw my application to enter the U.S. and my B1 visa was cancelled.  I was told to apply for a different visa.  Then, a month ago I received a job offer from a company in the U.S.  I applied for a TN visa, which I didn't get because I did not fulfill the necessary requirements and was told to apply for a different working visa.  My question is, do I have a 5 year bar? No one is telling me so.  I'm told to reapply for a different visa, but never that I'm inadmissible.

REPLY:  Thank you for your question.  While I cannot provide you with case-specific advice without first reviewing your case in detail, I can provide you with some general information that may be useful.

Permission to withdraw an application for admission does not, in itself, carry any bar to future admission.  In some instances, however, the individual granted permission to withdraw his/her application for admission is also charged with a ground of inadmissibility at the time of withdrawal and, therefore, may be inadmissible on such grounds (i.e., criminal grounds; unlawful presence; fraud).  Many grounds of inadmissibility carry with them a bar to admission for which a waiver is required (if available).   If the individual has been issued an order of expedited removal, which is different than a withdrawal of application for admission, then s/he is subject to a 5-year bar.

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